Norwood v. Vance

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GREGORY LYNN NORWOOD, 
Plaintiff-Appellee,
v.
STEVE J. VANCE; MIKE KNOWLES, No. 07-17322
Warden, CSP-Sacramento; THOMAS
P. GOUGHNOUR; MICHAEL F.  D.C. No.
CV-03-02554-
MARTEL; DAVID I. WILLEY; CHERYL GEB/GGH
PLILER, Former Warden at CSP;
JAMES P. WALKER, Associate
Warden,
Defendants-Appellants.


GREGORY LYNN NORWOOD, 
Plaintiff-Appellee,
v.
STEVE J. VANCE; MIKE KNOWLES, No. 08-15778
Warden, CSP-Sacramento; THOMAS D.C. No.
P. GOUGHNOUR; JAMES P. WALKER, 2:03-CV-02554-
Associate Warden; DAVID I.  GEB-GGH
WILLEY; CHERYL PLILER, Former ORDER AND
Warden at CSP, AMENDED
Defendants-Appellants, OPINION
and
MICHAEL F. MARTEL,
Defendant.


431
432 NORWOOD v. VANCE
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding

Argued and Submitted
October 29, 2008—Sacramento, California

Filed July 9, 2009
Amended January 7, 2010

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and
Consuelo M. Callahan, Circuit Judges.

Opinion by Chief Judge Kozinski;
Dissent by Judge Thomas
 NORWOOD v. VANCE 435

COUNSEL

Carter White, Supervising Attorney, and Erin Haney, Certi-
fied Law Student, U.C. Davis School of Law, King Hall Civil
Rights Clinic, Davis, California, for the plaintiff-appellee.

Christopher J. Becker, Esquire, Jim Sobolewski, James Flynn,
Deputy Attorneys General, Office of the California Attorney
General, Sacramento, California, for the defendants-
appellants.

ORDER

The opinion is amended as follows:

Page 629, column 1,
line 26 Add a footnote after stating:

Page 632, column 2,
lines 36-37 Replace with

Page 633, column 1,
line 35 Replace with
436 NORWOOD v. VANCE
Appellee’s Petition for Panel Rehearing and Rehearing en
banc is otherwise denied. See Fed. R. App. P. 35, 40. Judge
Thomas would grant the petition.

No further petitions for rehearing or rehearing en banc may
be filed.

OPINION

KOZINSKI, Chief Judge:

We consider when prison officials may be held liable for
depriving inmates of outdoor exercise.

Facts

Gregory Norwood was incarcerated at CSP-Sacramento, a
maximum security prison, during a particularly violent period
in the prison’s history. Norwood brought this section 1983
action alleging that prison officials violated the Eighth
Amendment when they denied him outdoor exercise during
four separate extended lockdowns over the course of two
years.

The prison initiated these lockdowns after serious inmate
assaults on staff. During the lockdowns, inmates were con-
fined to their cells and normal programs were suspended
while officials investigated the violence. Based on what they
learned, officials gradually eased restrictions on specific
gangs, ethnic and racial groups, restoring outdoor exercise
sooner for inmates who they believed would pose less risk of
further violence. Norwood was not a gang member, but gang
members often pressured unaffiliated inmates of the same
race or ethnicity to assist them. Prison officials therefore
believed that limiting the scope of lockdowns to gang mem-
bers would be inadequate to ensure safety.
 NORWOOD v. VANCE 437
During this two-year period, there were also numerous
inmate-on-inmate attacks. Officials did not always initiate
total lockdowns after such attacks. According to one defen-
dant, the prison’s response to inmate-on-inmate violence
“[d]epends on the circumstances of the assault. . . . [I]f it’s
fisticuffs, and it’s a one-on-one situation, no, we wouldn’t
lock down for that. If it’s a slashing assault, or a stomping, or
multiple inmates involved in a melee, then yes, we would lock
down . . . .”

Officials initiated the first lockdown in early 2002 after
eleven Hispanic inmates attacked four correctional officers,
nearly killing one of them. Prison officials didn’t know if the
attack was planned or isolated. They also didn’t know, and
were never able to ascertain, who provided the weapons. The
weeks following the attack brought a series of inmate-on-
inmate attacks, including a homicide, as well as another
attempted murder of an officer. Officials eventually decided
it was safe to begin restoring normal programs, beginning
with “critical workers.” Norwood was in the second group of
workers to resume outdoor exercise. His exercise had been
suspended for about three months.

In early May, a black inmate stabbed an officer in a dining
hall. Officials initiated a second lockdown but began restoring
normal programs by the end of the month. By mid-July, pris-
oners other than blacks had resumed outdoor exercise. Even
so, attacks on officers occurred during this lockdown, includ-
ing a battery and an attempted battery. Norwood, who is
black, was denied exercise for three months.

In the waning days of 2002, black inmates attempted to
murder a correctional officer, and a number of black Crips
attacked staff members. Officials initiated a third lockdown,
during the course of which inmates committed four batteries
or attempted batteries of officers and five batteries or
attempted murders of inmates. During this lockdown, Nor-
438 NORWOOD v. VANCE
wood’s outdoor exercise was suspended for four and a half
months.

In September of 2003, a black Crip attempted to murder an
officer. Because of the seriousness of the incident and the fact
that it was the fourth major assault on staff in a 19-month
period, officers locked down all inmates and declared a state
of emergency. Officers eventually determined that the
attacker had acted alone and began restoring outdoor exercise.
But the violence continued. Certain white inmates, and those
celled with them, were locked down because of an attempted
murder of an inmate in November, and certain Crips and their
cellmates remained on lockdown from earlier violence. Nor-
wood was denied outdoor exercise for two months.

A jury found that defendants violated Norwood’s Eighth
Amendment right to outdoor exercise but concluded that Nor-
wood suffered no harm and thus awarded no compensatory
damages. The jury did award $11 in nominal damages and
$39,000 in punitive damages. The district court awarded
$23,875.55 in attorney’s fees. Defendants appeal.1

Analysis

I

Defendants claim the district court erred by refusing to give
the following jury instruction:

In considering whether defendants were deliberately
indifferent to the need for outdoor exercise, the jury
should consider that defendants had a competing
obligation under the Eighth Amendment to ensure
the safety of prisoners, including protecting prison-
1
Only an Eighth Amendment outdoor exercise claim is before us on this
appeal. We therefore express no view as to the race-based aspect of the
lockdowns or any potential Equal Protection claim.
 NORWOOD v. VANCE 439
ers from each other. In considering these factors, you
should give deference to prison officials in the adop-
tion and execution of policies and practices that in
their judgment are needed to preserve discipline and
to maintain internal security in a prison.

The district court initially agreed to the language but, after
plaintiff objected, declined to include it on the ground that
“deference” was “undefined.” Because defendants challenge
the resulting jury instruction as an incomplete, and therefore
incorrect, statement of the law our review is de novo. Clem
v. Lomeli, No. 07-16764, slip op. at 6572 (9th Cir. June 2,
2009); Dang v. Cross, 422 F.3d 800, 804-06 (9th Cir. 2005).

Plaintiff argues that defendants failed to preserve their
objection below. See Fed. R. Civ. P. 51(d)(2). But the record
shows that defendants contested the district court’s decision
not to include the proposed language and made the grounds
for their position clear, citing relevant authority. An “objec-
tion need not be formal,” and defendants’ proffered language
was “sufficiently specific to bring into focus the precise
nature of the alleged error.” Inv. Serv. Co. v. Allied Equities
Corp., 519 F.2d 508, 510 (9th Cir. 1975). Nor did the district
judge’s vague statement that defendants “may” have an
opportunity to change his mind counter the overall impression
that raising the issue again via formal objection would be both
“unavailing” and a “pointless formality.” Glover v. Bic Corp.,
6 F.3d 1318, 1326 (9th Cir. 1993).

[1] It is well established that judges and juries must defer
to prison officials’ expert judgments. In Bell v. Wolfish, the
Supreme Court explained:

[T]he problems that arise in the day-to-day operation
of a corrections facility are not susceptible of easy
solutions. Prison administrators therefore should be
accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judg-
440 NORWOOD v. VANCE
ment are needed to preserve internal order and disci-
pline and maintain institutional security.

441 U.S. 520, 547 (1979). Six years later, the Court spelled
out that deference requires “that neither judge nor jury freely
substitute their judgment for that of officials who have made
a considered choice.” Whitley v. Albers, 475 U.S. 312, 322
(1985) (emphasis added). The Court confirmed that Bell
remains good law in Farmer v. Brennan, its seminal opinion
on challenges to conditions of confinement, which twice cited
Bell with approval. 511 U.S. 825, 845, 847 (1994).

The district court declined to give the proposed instruction
because the meaning of deference would not be “clear to a lay
person.” But “deference” is not Urdu or Klingon; it is a com-
mon English word. See, e.g., Michael Crichton, Airframe 78
(1996) (“[S]he certainly knew where all the bodies were bur-
ied. Within the company, she was treated with a deference
bordering on fear.”). It may be true that deference has varied
meanings, Dissent at 454 n.4, but so do most English words.
If the district judge believed the term needed further context
or definition, he could have provided it.

[2] Perfect or not, the defendants’ proposed instruction
brought the issue of deference to the district court’s attention.
“[T]he fact that the proposed instruction was misleading does
not alone permit the district judge to summarily refuse to give
any instruction on the topic.” Merrick v. Paul Revere Life Ins.
Co., 500 F.3d 1007, 1017 (9th Cir. 2007). The district court
omitted the instruction altogether, rather than modifying it to
correct the perceived deficiency. The remaining instructions
failed to alert the jury that the deliberate indifference standard
“incorporates due regard for prison officials’ ‘unenviable task
of keeping dangerous men in safe custody under humane con-
ditions.’ ” Farmer, 511 U.S. at 845 (quoting Spain v. Procu-
nier, 600 F.2d 189, 193 (9th Cir. 1979)). The dissent
apparently believes that, because Farmer “incorporates” Bell
deference, the use of language drawn from Farmer was ade-
 NORWOOD v. VANCE 441
quate to instruct the jury. Dissent at 452. But juries are not
clairvoyant and will not know to defer unless they are told to
do so.

[3] We have long recognized that additional instruction
regarding deference is required in cases applying Whitley to
allegedly excessive force by prison officials. See Ninth Cir-
cuit Manual of Model Jury Instructions § 9.24 (2007 ed.). The
dissent accuses us of improperly extending the Whitley regime
to a case involving conditions of confinement. Dissent at 451.
But defendants’ proposed instruction was not drawn from
Whitley; it was drawn from Bell—itself a conditions of con-
finement case. Bell, 441 U.S. at 534, 547. Prison officials are
entitled to deference whether a prisoner challenges excessive
force or conditions of confinement. See Whitley, 475 U.S. at
322; Farmer, 511 U.S. at 845. Indeed, conditions of confine-
ment and use of force are often flip sides of the same coin: A
more restrictive confinement may diminish the need for force
and vice versa.

[4] As the government recognized at trial, the court’s
instruction correctly stated Farmer’s deliberate indifference
standard. But the court’s failure to give additional guidance
on deference rendered the instruction incomplete and mislead-
ing. And the error was also prejudicial. If properly instructed,
the jurors might well have reached a different conclusion.
Norwood has not met his burden of showing the verdict
would “more probably than not” have been the same absent
the error. Clem, slip op. at 6575. We therefore vacate the
jury’s verdict and damages awards.

II

We would normally remand for a new trial, but as defen-
dants are entitled to qualified immunity that is not necessary
here. Our dissenting colleague may be right that defendants
waived the immunity claim by failing to raise it to the district
court during or immediately after trial. On appeal, however,
442 NORWOOD v. VANCE
Norwood failed to argue waiver; rather, he addressed quali-
fied immunity on the merits while arguing waiver of the two
other principal issues in the case. In Tortu v. Las Vegas Met-
ropolitan Police Department, 556 F.3d 1075 (9th Cir. 2009),
cited by the dissent, see Dissent at 456, plaintiff explicitly
argued that defendants had forfeited qualified immunity by
failing to make the proper motion below. Tortu, 556 F.3d at
1081.

[5] It is “well-established” that a party can “ ‘waive waiver’
implicitly by failing to assert it.” Tokatly v. Ashcroft, 371
F.3d 613, 618 (9th Cir. 2004); United States v. Garcia-Lopez,
309 F.3d 1121, 1123 (9th Cir. 2002); see also Wilson v.
Kelkhoff, 86 F.3d 1438, 1445 (7th Cir. 1996) (plaintiff waived
defendant’s waiver of absolute immunity defense). Norwood
waived the defendants’ waiver by addressing the claim on the
merits without also making a waiver argument. Cf. Chicano
Educ. & Manpower Servs. v. U.S. Dep’t of Labor, 909 F.2d
1320, 1327-28 & n.5 (9th Cir. 1990) (“Yes, we are indeed
holding that the Department has waived its right to argue that
CEMS waived its right to ask for a waiver . . . .”). The dissent
would have us raise the issue of waiver sua sponte and sug-
gests that we have “discretion” not to reach defendants’ quali-
fied immunity claim. Dissent at 457-58. But “[t]his court will
not address waiver if not raised by the opposing party.”
United States v. Doe, 53 F.3d 1081, 1802-83 (9th Cir. 1995)
(quoting United States v. Schlesinger, 49 F.3d 483, 485 (9th
Cir. 1995)). Even if we had such discretion, we believe the
more prudent course is to resolve the case on the basis of the
issues actually briefed and argued by the parties.

[6] When a party waives waiver, we proceed directly to the
merits. See, e.g., Tokatly, 371 F.3d at 618-24; Doe, 53 F.3d
at 1083-84; Wilson, 86 F.3d at 1445-46. We do not, as the dis-
sent suggests, Dissent at 458-59, engage in plain error review.
Defendants are entitled to qualified immunity so long as a
right to outdoor exercise in the midst of severe ongoing prison
violence was not clearly established at the time defendants
 NORWOOD v. VANCE 443
acted. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001). “The
relevant, dispositive inquiry . . . is whether it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. at 202 (emphasis added).

[7] Three factors weigh heavily in our analysis: First, as
Saucier explains, the qualified immunity inquiry is highly
context-sensitive, turning on whether it would be clear to a
reasonable officer that denying outdoor exercise was unlawful
“in the situation he confronted.” Id. The extraordinary vio-
lence gripping the prison threatened staff and inmates alike,
and there was a serious risk that gangs would press unaffili-
ated inmates like Norwood into service. See pp.436-38 supra.
While Norwood argues that a reasonable officer would have
known that denying outdoor exercise in the midst of ongoing
prison violence violated his rights, he cites just one case Allen
v. Sakai, 48 F.3d 1082 (9th Cir. 1995)—for the general propo-
sition that the Ninth Circuit “is one of many [courts] that have
held that there is a constitutional right to outdoor exercise for
inmates.”

But Allen does not hold that a prisoner’s right to outdoor
exercise is absolute and indefeasible, or that it trumps all
other considerations. Plaintiffs in Allen survived summary
judgment because prison officials there relied on “inconse-
quential logistical concerns” to justify denying outdoor exer-
cise. Id. at 1088. Defendants here had substantial reasons for
imposing the lockdowns: They were attempting to restore
order during a series of brutal attacks, some lethal or nearly
so. They did not place “inconsequential logistical concerns”
above Norwood’s need for outdoor exercise. And plaintiff
offered no evidence that the lockdowns were meant to be
punitive or were otherwise implemented in bad faith.

[8] Second, prison officials have a duty to keep inmates
safe, and in particular to protect them from each other. Far-
mer, 511 U.S. at 832-33; LeMaire v. Maass, 12 F.3d 1444,
1462 (9th Cir. 1993). Officials must balance this imperative
444 NORWOOD v. VANCE
against other obligations that our laws impose, such as provid-
ing outdoor exercise. When violence rises to unusually high
levels, prison officials can reasonably believe it is lawful to
temporarily restrict outdoor exercise to help bring the vio-
lence under control. We’ve explained that “prison officials
have a right and a duty to take the necessary steps to reestab-
lish order in a prison when such order is lost. This is for the
benefit of the prisoners as much as for the benefit of the
prison officials.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th
Cir. 1982). Here, at least one prisoner had died; others (pris-
oners and guards) had been severely wounded. Defendants
had to act decisively to stop the violence.

The dissent claims that the “jury reasonably rejected defen-
dants’ argument that unusual levels of violence justified the
long-term deprivations in this case” because “defendants con-
ceded on cross-examination that ‘those types of [violent] inci-
dents occur even when there is no lockdown,’ with the same
frequency, and that ‘the violence is pretty steady.’ ” Dissent
at 463-64 (emphasis omitted). But there’s more to the former
warden’s testimony:

While we were on lockdown status, these types of
things continued to happen. Either as we incremen-
tally unlocked and released to the small yards for
exercise, or sent—you know, releasing—lifting the
privileges to go to meals or whatever, violence con-
tinued to happen. And if that violence was—
occurred based on a decision that we made that we
felt it was safe, and we let the small group of prison-
ers out and something happened, then we would call
back our prior decision. [Emphasis added.]

What we understand the warden to be saying is that the lock-
downs were effective at curbing violence, and that violence
resumed as privileges were restored.

Such decisions are not to be judged with the benefit of
hindsight, in any event. It matters not whether the measures
 NORWOOD v. VANCE 445
taken actually worked but whether prison officials reasonably
believed they would be effective in stopping the violence. At
most, prison officials here may be faulted for erring on the
side of caution by maintaining lockdowns for longer than nec-
essary. But, when it comes to matters of life and death, erring
on the side of caution is a virtue. Certainly, no officer could
reasonably have anticipated that such prudence would be
found to violate the Eighth Amendment.

[9] Third, when balancing the obligation to provide for
inmate and staff safety against the duty to accord inmates the
rights and privileges to which they are entitled, prison offi-
cials are afforded “wide-ranging deference.” Bell, 441 U.S. at
547. When a “lockdown was in response to a genuine emer-
gency,” and “restrictions were eased as the prison administra-
tion determined that the emergency permitted,” we may not
lightly second-guess officials’ expert judgments about when
exercise and other programs could safely be restored. “These
decisions are delicate ones, and those charged with them must
be given reasonable leeway.” Hayward v. Procunier, 629
F.2d 599, 603 (9th Cir. 1980).

[10] It would be particularly odd to hold that liability
attaches in this case, where hindsight validates defendants’
decisions. The record makes clear that a great deal of violence
took place during outdoor exercise. While denying outdoor
exercise for extended periods carried some risk of harm, offi-
cials’ judgment that there was a greater risk of harm from
allowing outdoor exercise was certainly reasonable. Indeed,
Norwood suffered no injuries from attacks by other inmates
or from being denied outdoor exercise—a fact the jury recog-
nized by awarding no compensatory damages. Norwood
might have fared less well had prison officials been less cau-
tious. Although exercise is “one of the basic human necessi-
ties protected by the Eighth Amendment,” LeMaire, 12 F.3d
at 1457, “a temporary denial of outdoor exercise with no med-
ical effects is not a substantial deprivation.” May v. Baldwin,
109 F.3d 557, 565 (9th Cir. 1997).
446 NORWOOD v. VANCE
[11] We therefore conclude that a reasonable officer could
have believed that restricting Norwood’s outdoor exercise
was consistent with the Eighth Amendment. Certainly, no
authority clearly established the contrary. Allen didn’t. See
p.443 supra. And Spain v. Procunier, 600 F.2d 189 (9th Cir.
1979), concerned inmates in disciplinary segregation who
were denied outdoor exercise as a normal condition of their
confinement, id. at 199-200, rather than for safety during
emergencies. Not surprisingly, our district courts have found
an absence of Eighth Amendment liability on facts similar to
these. See, e.g., Jones v. Garcia, 430 F. Supp. 2d 1095,
1102-03 (S.D. Cal. 2006) (finding no Eighth Amendment vio-
lation where prisoner was denied outdoor exercise for ten
months—double the longest single period that Norwood’s
exercise was restricted—because of ongoing violence); Hayes
v. Garcia, 461 F. Supp. 2d 1198, 1201, 1207-08 (S.D. Cal.
2006) (same for nine-month denial of outdoor exercise); Hurd
v. Garcia, 454 F. Supp. 2d 1032, 1042-45 (S.D. Cal. 2006)
(same for five-month denial).

Norwood argues that defendants had no need to conduct
lengthy lockdown investigations because those investigations
either found that the initial assaults were isolated incidents or
else could not determine who else was involved. Norwood
also argues that defendants could have limited exercise
restrictions to specific groups of prisoners. But the investiga-
tions were reasonable precautions, and defendants had no way
of knowing beforehand what they would yield. That defen-
dants imposed general lockdowns after some attacks on staff
but only group-specific restrictions after some attacks on
inmates does not show malicious intent or deliberate indiffer-
ence. Attacks on staff are, by their nature, more serious chal-
lenges to prison authority than attacks on other inmates.

[12] We decline Norwood’s invitation to micro-manage
officials whose expertise in prison administration far exceeds
our own, and we conclude that defendants are entitled to qual-
 NORWOOD v. VANCE 447
ified immunity. On remand, the district court shall enter judg-
ment consistent with this opinion.

[13] Because plaintiff is no longer the prevailing party, we
vacate the award of attorney’s fees.

REVERSED.

THOMAS, Circuit Judge, dissenting:

There is no reason on this record to disturb the jury verdict.
The district court correctly analyzed the law and properly
instructed the jury consistent with our precedent. The jury
considered all of the evidence and rejected the government’s
theory that defendants were not deliberately indifferent
because security concerns justified the ongoing deprivations.
Substantial evidence supports the jury verdict.

I would not reach the question of qualified immunity
because the government did not preserve the issue for appeal.
Assuming for argument’s sake that it was proper for us to
entertain the defense, I would hold that the defendants were
not entitled to qualified immunity. Clearly established law
precludes prison officials from depriving inmates of outdoor
exercise for extended periods absent exigent circumstances.
The jury’s finding that defendants acted with reckless disre-
gard to the risk to Norwood’s health and safety leaves no
room to conclude defendants could reasonably have believed
their actions lawful.

For these reasons, I must respectfully dissent.

I

We afford trial judges “substantial latitude in tailoring jury
instructions.” Mockler v. Multnomah County, 140 F.3d 808,
448 NORWOOD v. VANCE
812 (9th Cir. 1998) (citation omitted). Here, there is no doubt
that the district court properly instructed the jury on the essen-
tial elements of the claim at issue. Indeed, the government
concedes that the jury was properly instructed, and it did not
object to the instruction given by the district court. What the
government sought was an additional, misleading instruction
that would have engrafted supplemental requirements onto
those dictated by precedent. The district court found that the
new instruction was unclear, undefined, and used language
that would be confusing to a lay jury. A district court does not
commit error in rejecting a misleading supplementary instruc-
tion that is at odds with a controlling instruction everyone
agrees was properly given. “Jury instructions must be formu-
lated so that they fairly and adequately cover the issues pre-
sented, correctly state the law, and are not misleading.” Id.
(citation omitted).

This case involved a challenge to prison conditions—
specifically, the long-term deprivation of outdoor exercise—
to which the deliberate indifference standard applies. The jury
was instructed that:

To establish deliberate indifference plaintiff must
prove defendant knew that plaintiff faced a substan-
tial risk of serious harm to his health or safety and
disregarded that risk by failing to take reasonable
measures to correct it. Under the deliberate indiffer-
ence standard, defendant must have been aware of
facts from which the inference could be drawn that
a substantial risk of serious harm to plaintiff’s health
or safety existed due to deprivation of outdoor exer-
cise, and defendant must also have drawn that infer-
ence.

The jury was further instructed that “[a] defendant who
actually knew of a substantial risk of a serious harm to plain-
tiff’s health or safety may be found free from liability if he
responded reasonably to the risk, even if the harm was not
 NORWOOD v. VANCE 449
ultimately averted.” These instructions set forth—almost
verbatim—the deliberate indifference culpability standard for
cases involving challenges to prison conditions announced by
the Supreme Court in Farmer v. Brennan, 511 U.S. 825
(1994). See id. at 837 (“We hold . . . that a prison official can-
not be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the offi-
cial knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”);
id. at 844 (“[P]rison officials who actually knew of a substan-
tial risk to inmate health or safety may be found free from lia-
bility if they responded reasonably to the risk, even if the
harm ultimately was not averted.”). In combination with the
instruction that exercise did not have to be provided if “in-
clement weather, unusual circumstances, or disciplinary needs
makes that impossible,” the instructions conveyed to the jury
that it could not find defendants liable if the officials knew of
the risk posed by continuing the lockdowns without providing
for exercise, but responded reasonably to that risk under the
circumstances.

The government agreed that the jury instruction that “exer-
cise must be provided unless inclement weather, unusual cir-
cumstances, or disciplinary needs makes that impossible” was
“an adequate and proper statement of the law.” See Allen v.
Sakai, 40 F.3d 1001, 1004 (1994) (stating that prison officials
were required to “provide regular outdoor exercise to [the
plaintiff] unless ‘inclement weather, unusual circumstances,
or disciplinary needs made that impossible’ ”) (quoting Spain
v. Procunier, 600 F.2d 189, 199 (1979) (Kennedy, J.))).

What the government sought was an additional instruction
that amounted to a command to direct a verdict in favor of the
government:

In considering whether defendants were deliberately
indifferent to the need for outdoor exercise, the jury
450 NORWOOD v. VANCE
should consider that defendants had a competing
obligation under the Eighth Amendment to ensure
the safety of prisoners, including protecting prison-
ers from each other. In considering these factors, you
should give deference to prison officials in the adop-
tion and execution of policies and practices that in
their judgment are needed to preserve discipline and
maintain internal stability in a prison.

The district court rejected the proffered jury instruction
because he found the deference language unclear and unde-
fined, noting that “one of my jobs as a judge is to provide the
jury with an understandable instruction, something that’s clear
to a lay person.”

One cannot fault the district court’s analysis.1 The proposed
instruction deviates from the Supreme Court’s formulation of
the standard of deliberate indifference in Farmer, and the dis-
trict court rightly concluded it might be confusing to a lay
jury.

The language sought by the government not only departed
from the proper and time-tested definition of deliberate indif-
ference, but also would have imported language that the
Supreme Court has held is not proper for such cases. The def-
erence language requested by defendants appears verbatim in
the model Ninth Circuit jury instruction for prisoner excessive
1
Indeed, by providing instructions defining deliberate indifference in
Farmer’s terms, rather than using the current version of the Ninth Circuit
Model Jury Instruction, the trial judge actually avoided error on another
front. See Clem v. Lomeli, No. 07-16764, slip op. at 6574-75 (9th Cir. June
2, 2009) (holding that district court erred in providing current Ninth Cir-
cuit Model Jury Instruction 9.25 because the instruction deviates from
Farmer, which does not require “direct causation by affirmative action”
of prison officials); id. at 6577 (emphasizing that current Ninth Circuit
Model Jury Instruction 9.25 does not adequately state the law because it
never “mentions or defines the term ‘deliberate indifference’ ”) (Hug, J.,
concurring).
 NORWOOD v. VANCE 451
force claims, in which the heightened subjective culpability
standard set forth in Whitley v. Albers, 475 U.S. 312, 321-22
(1986), applies.2 See Ninth Circuit Manual of Model Jury
Instructions § 9.24 (2007 ed.).

However, the Whitley excessive force standard, under
which prison officials may be held liable only if they act “ma-
liciously or sadistically for the very purpose of causing harm,”
Whitley, 475 U.S. at 321-22 (citation omitted), does not apply
to claims challenging prison conditions. Indeed, our precedent
forecloses such an application, and defendants do not argue
otherwise. In Johnson v. Lewis, 217 F.3d 726 (2000), we held
that where prisoners were held handcuffed and prone in a
prison yard for four days after a riot, the heightened culpabil-
ity standard announced in Whitley applied to the prison offi-
cials’ actions up to the point when the inmates were secured,
but that once the prison officials “were no longer required to
make split-second, life-and-death decisions,” the deliberate
indifference standard applied. Id. at 734; see also Jordan v.
Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc)
(Whitley’s “maliciously or sadistically” standard applies “in
the context of a prison-wide disturbance or individual con-
frontation between an officer and prisoner,” when “correc-
tions officers must act immediately and emphatically to defuse
a potentially explosive situation”) (emphasis added). As we
explained in Jordan, the excessive force test involves the
examination of “the exercise of judgment of a particular offi-
cer on a specific occasion,” while the deliberate indifference
test generally involves “polic[ies] . . . developed over time,
with ample opportunity for reflection.” Jordan, 986 F.2d at
1528.
2
It is questionable whether this deference language is even properly
included in jury instructions for excessive force cases. See Catherine T.
Struve, Constitutional Decision Rules for Juries, 37 COLUM. HUM. RTS. L.
REV. 659, 679 (2006) (arguing that including deference language in exces-
sive force jury instruction double counts the deference due prison officials
because the Whitley standard already incorporates deference).
452 NORWOOD v. VANCE
The language that the government proposed in this case
would have effectively imposed the more deferential standard
we held inapplicable in Johnson and Jordan. The standards
for excessive force claims are not coextensive with the stan-
dards applicable to prison conditions claims. In my view, not
only was the trial judge justified in rejecting the instruction,
the judge would have committed error if he had given it.

Defendants contend that the deliberate indifference stan-
dard “did not capture the importance of deferring to the expert
judgment of prison officials concerning when outdoor exer-
cise could safely be resumed.” However, contrary to defen-
dants’ assertion, the deliberate indifference standard
announced in Farmer and adopted by the trial judge in his
instructions is a “standard that incorporates due regard for
prison officials’ ‘unenviable task of keeping dangerous men
in safe custody under humane conditions.’ ” Farmer, 511 U.S.
at 845 (emphasis added) (citing Spain, 600 F.2d at 193). The
Supreme Court in Farmer also cited its decision in Bell v.
Wolfish, 441 U.S. 520 (1979), in support of the iteration of the
deliberate indifference standard it adopted, indicating that the
principle of deference to the judgment of prison officials
undergirds the standard.3 See id. It is a mistake to confuse the
deference language surrounding the Supreme Court’s
announcement of the applicable standards in Whitley and
Farmer with the standards themselves. See Catherine T.
Struve, Constitutional Decision Rules for Juries, 37 COLUM.
HUM. RTS. L. REV. 659, 679 (2006) (noting that deference lan-
3
The majority argues that the requested instruction was required
because its language was drawn from Bell, a case that involved a chal-
lenge to conditions of confinement, albeit in the pretrial detention context.
However, Bell preceded the line of Supreme Court cases setting forth the
current standards applicable to prison conditions cases—including the
deliberate indifference standard. The deliberate indifference standard
incorporates the level of deference the Court has deemed warranted in the
context of challenges to prison conditions under the Eighth Amendment,
as opposed to challenges to prison policies and practices under generally
applicable constitutional provisions.
 NORWOOD v. VANCE 453
guage in Whitley “explain[s] the Court’s choice of decision
rule, but need not be seen as a part of that decision rule”).

An instruction incorporating further deference would run
afoul of the Supreme Court’s rejection of such an approach in
Johnson v. California, 543 U.S. 499 (2005). In Johnson, the
Court expressly disavowed the applicability in the Eighth
Amendment context of the standard articulated in Turner v.
Safley, 482 U.S. 78, 89 (1987), namely that a “regulation is
valid if it is reasonably related to legitimate penological inter-
ests.” The Court reasoned that “the integrity of the criminal
justice system depends on full compliance with the Eighth
Amendment.” Johnson, 543 U.S. at 511. In support of this
assertion, the Court quoted with approval the following pas-
sage from Justice Kennedy’s decision for this Court in Spain:

[T]he full protections of the eighth amendment most
certainly remain in force [in prison]. The whole
point of the amendment is to protect persons con-
victed of crimes. . . . Mechanical deference to the
findings of state prison officials in the context of the
eighth amendment would reduce that provision to a
nullity in precisely the context where it is most nec-
essary.

Id. (quoting Spain, 600 F.2d at 194). Inclusion of the
requested deference instruction, in light of the fact that the
appropriate level of deference was already incorporated in the
culpability standard, would have invited exactly the sort of
“mechanical deference” the Supreme Court has rejected.

Further, Farmer suggests that it is judges at whom the def-
erence language in the Bell line of cases is directed, and
judges who must be mindful of the respective competencies
of the judiciary and executive branches. See Farmer, 511 U.S.
at 846-47 (noting that district courts should approach grant of
injunctive relief in prison conditions cases with caution lest
they become “enmeshed in the minutiae of prison opera-
454 NORWOOD v. VANCE
tions”) (quoting Bell, 441 U.S. at 562). Farmer does not sug-
gest that this complex balancing of competing institutional
interests should be placed directly in the hands of jurors. See
Struve, supra, at 681-82 (arguing that not all judicial decision
rules are appropriate for use as decision rules for juries).
While juries, as part of the judicial branch, no doubt have an
indirect role to play in this balancing process, they properly
play this role by applying the standards the Supreme Court
has determined strike the appropriate balance. The district
court in this case accurately instructed the jury on those stan-
dards. In doing so, the district court in this case wisely recog-
nized that not every general legal principle “lifted from the
case law” is properly provided as instruction to the jury. The
court correctly concluded that to give the government’s dou-
ble deference instruction would have been confusing to a lay
jury.4
4
The majority criticizes the trial judge on this point, contending that def-
erence is a commonly understood lay term, and could not have been con-
fusing. However, its citation of language in the novel Airframe illustrates
the problem. Instructing a jury to give prison officials deference, if defer-
ence commonly “borders on fear,” is not a correct application of the law
and would have amounted to directing a verdict in favor of the govern-
ment. Even in our sterile legal environment, deference comes in varietals,
such as Chevron deference, Skidmore deference, and sardonic deference.
See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J.,
dissenting) (“With all due deference, I am not at all convinced that the
additional barriers to the pursuit of truth which the Court today erects rest
on anything like the solid foundations which decisions of this gravity
should require.”). And, of course, there is more than one breed of institu-
tional deference relevant to this case. See, e.g., McCord v. Maguire, 873
F.2d 1271, 1274 (9th Cir. 1989) (correctly noting that we must be “mind-
ful of the deference due the verdict of a jury”) (citation omitted). Here, the
trial judge quite rightly concluded that to give an instruction that mixed
legal standards and, in effect, told the jury to layer deference upon defer-
ence, was not appropriate—particularly when the judge had already given
an entirely proper instruction on the topic. (I must, however, acknowledge
that the majority is quite correct in intuiting that, unsurprisingly, there is
no Klingon word for “deference.” See generally Marc Okrand, THE
KLINGON DICTIONARY (Star Trek 1992)).
 NORWOOD v. VANCE 455
Because the relevant level of deference is already incorpo-
rated into the content of the culpability standards governing
the conduct of prison officials, the district court correctly
rejected the instruction. The requested instruction misstated
applicable law and, as the district court properly concluded,
would have been confusing to the jury. Moreover, everyone
agrees that the primary instruction given by the judge on this
issue was entirely proper. The trial judge properly rejected the
defendants’ proffered “deference” instruction, in favor of an
instruction that everyone agrees correctly stated the applicable
law.5

II

The government did not preserve its qualified immunity
defense for appeal. The rules for preserving a qualified immu-
nity defense are straightforward. Qualified immunity is an
affirmative defense that must be pleaded in the answer. Sie-
gert v. Gilley, 500 U.S. 226, 231 (1991). However, “defen-
dants may raise an affirmative defense for the first time in a
motion for summary judgment . . . if the delay does not preju-
dice the plaintiff.” Magana v. Commonwealth of N. Mariana
Islands, 107 F.3d 1436, 1446 (9th Cir. 1997).
5
Although I have elected to discuss this issue on the merits, there is con-
siderable force to the plaintiff’s argument that the government failed to
preserve the question for appeal. Under Fed. R. Civ. P. 51(d)(1)(B), a
party may assign as error “a failure to give an instruction, if that party
properly requested it and—unless the court rejected the request in a defini-
tive ruling on the record—also properly objected.” (emphasis added). As
I have noted, at the conference at which the instructions were discussed,
the trial judge indicated that he found the government’s proposed instruc-
tion confusing and indicated that he was not inclined to give it. However,
he also stated, “at this juncture, you may have an opportunity to show me
that I’m wrong later, I think the plaintiff’s position is correct.” At the criti-
cal moment in the trial, when the judge asked for objections to the instruc-
tions as given, the government stated that it “will not object to any of the
instructions” except to “renew the defendants’ request for failure to miti-
gate.” The government did not, at the critical juncture when formal objec-
tions were to be made, request that the court give the additional deference
instruction.
456 NORWOOD v. VANCE
If the district court denies qualified immunity on a sum-
mary judgment motion, the order is immediately appealable
as a collateral order if the judgment is made as a matter of law
and “the issue appealed concerns whether the facts demon-
strated a violation of clearly established law.” Rodis v. City
and County of San Francisco, 558 F.3d 964, 968 (9th Cir.
2009) (citation omitted). If the district court denies summary
judgment on qualified immunity because there remain genu-
ine issues of material fact, then there is no right of interlocu-
tory appeal, because such an order is not a “final, immediately
appealable order.” Maropulos v. County of Los Angeles, 560
F.3d 974, 975 (9th Cir. 2009) (per curiam); see also KRL v.
Estate of Moore, 512 F.3d 1184, 1188-89 (9th Cir. 2008)
(“Our jurisdiction is limited to questions of law, and does not
extend to qualified immunity claims involving disputed issues
of material fact.”).

If the district court denies qualified immunity because there
are genuine issues of material fact, then the case proceeds to
trial. “When a qualified immunity claim cannot be resolved
before trial due to a factual conflict, it is a litigant’s responsi-
bility to preserve the legal issue for determination after the
jury resolves the factual conflict.” Tortu v. Las Vegas Metro.
Police Dep’t., 556 F.3d 1075, 1083 (9th Cir. 2009). To pre-
serve the issue of qualified immunity, the defendants must
make a motion for judgment as a matter of law under Fed. R.
Civ. P. 50(a). Id. The Rule 50(a) motion must be filed “at any
time before the case is submitted to the jury.” Id. at 1081. A
party may also renew the motion for judgment as a matter of
law based on qualified immunity after trial under Fed. R. Civ.
P. 50(b). However, a “failure to file a Rule 50(a) motion pre-
cludes consideration of a Rule 50(b) motion for judgment as
a matter of law.” Id. at 1083. Filing a motion for summary
judgment or raising the issue in pre-trial submissions is not
sufficient to avoid a waiver. Id. at 1082.

Here, defendants raised qualified immunity as an affirma-
tive defense and moved for summary judgment. The district
 NORWOOD v. VANCE 457
court denied summary judgment because there were genuine
issues of material fact. In their pretrial statement, defendants
acknowledged that their motion for qualified immunity had
been denied based on the existence of material factual dis-
putes and stated that their “entitlement to qualified immunity
at trial will depend on what evidence is produced to the court
for determination of this issue.”

The case proceeded to trial. Defendants did not request that
the judge give any instructions to the jury pertinent to the
immunity defense. Defendants did not file a Rule 50(a)
motion for judgment as a matter of law before the case was
submitted to the jury. Nor did defendants file a renewed
motion for judgment as a matter of law pursuant to Rule 50(b)
after the verdict was rendered. In fact, after a jury was seated,
the issue of qualified immunity was never mentioned again in
the district court. At oral argument, defendants conceded that
they provided the district court no opportunity to rule on the
question whether, on the facts established at trial, they were
entitled to qualified immunity. Defendants offered no argu-
ment or explanation as to why the issue should not be deemed
forfeited. Plainly, defendants did not preserve their post-trial
assertion of qualified immunity for appeal. Under Tortu, the
government has forfeited its qualified immunity defense, and
we should not consider it for the first time on appeal.

The majority quite rightly notes that the plaintiff did not
raise the issue of waiver in its appellate briefing, which was
a serious omission. That omission places the question of
whether to entertain the government’s belated qualified
immunity argument within our sound discretion. I would not
choose to exercise such discretion.6 By entertaining an appeal
6
We have never held that we must reach the merits of an immunity
defense abandoned by the government below when the plaintiff fails to
argue waiver in the briefs. While the majority cites several of our cases
for the proposition that the Court does not address waiver if not raised by
the opposing party, none of these cases involved a party’s failure to raise
458 NORWOOD v. VANCE
based on a defense abandoned at trial, we impose on trial
judges the untenable duty of sua sponte re-examining a jury
verdict in light of abandoned defenses. The Rules set forth the
procedure for raising legal challenges to jury verdicts: making
a motion for judgment as a matter of law. The requirement is
critical not only to the structure of the adversary system, but
to our appellate system in which the trial court considers legal
arguments in the first instance. There are, of course, excep-
tions to this general rule and, from time to time, we have
indulged new legal arguments for the first time on appeal.
However, I would not make an exception in this case with the
effect of imposing a new duty on the trial court sua sponte to
consider abandoned defenses after the jury has issued its ver-
dict.

III

Assuming that the question of qualified immunity is prop-
erly before us, I would hold under the circumstances pre-
sented here that a reasonable officer could not have believed
the exercise deprivations in this case were lawful. Because the
government did not preserve the issue for appeal, we review

properly a defense to liability in the trial court. See Tokatly v. Ashcroft,
371 F.3d 613, 618 (9th Cir. 2004) (government waived argument that peti-
tioner had waived argument before the immigration judge); United States
v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002) (government
expressly waived argument that defendant had waived his right to appeal
as part of plea agreement); United States v. Doe, 53 F.3d 1081, 1082-83
(9th Cir. 1995) (where government urged court at oral argument to decide
issue on merits, argument that defendant had waived challenge to sentence
by not raising it on direct appeal was waived); United States v. Lewis, 787
F.2d 1318, 1323 n.6 (9th Cir. 1986) (court declined to address govern-
ment’s argument, raised for the first time in petition for rehearing, that
defendant had waived instructional error argument in trial court). Because
deciding in the first instance the applicability of an abandoned defense to
liability after a general jury verdict implicates concerns not present in
these cases, I would not extend the “waiver of waiver” principle to this
new context.
 NORWOOD v. VANCE 459
the claim under the familiar plain error standard. To prevail
on plain error review, the government must show (1) that the
proceedings below involved error, (2) that the error is plain,
and (3) that the error affected the substantial rights of the
aggrieved party. United States v. Olano, 507 U.S. 725, 732-35
(1993). In addition, the government must also show that the
alleged error—here, the trial judge’s failure, after the evi-
dence was presented, sua sponte to enter judgment as a matter
of law for defendants based on qualified immunity—
“ ‘seriously affect[s] the fairness, integrity or public reputa-
tion of judicial proceedings’ before we will exercise our dis-
cretion pursuant to Rule 52(b) to correct the plain error.”
United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir.
2006) (en banc) (internal quotation marks omitted).

To prevail on his Eighth Amendment prison conditions
claim, Norwood had to establish that he was subjected to an
objectively serious deprivation and thatprison officials were
deliberately indifferent to his health or safety. Farmer, 511
U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 303 (1991). As
the trial judge correctly instructed the jury, and defendants
conceded in their pretrial statement, the complete denial of
outdoor exercise for periods of up to four and one-half months
satisfies the objective prong of the Farmer test. Indeed, it was
clearly established at the time of the lockdowns involved in
this case that the complete deprivation of outdoor exercise for
periods of two to four and one-half months constituted an
objectively serious deprivation for purposes of the Eighth
Amendment.

Thirty years ago, we recognized that “some form of regular
outdoor exercise is extremely important to the psychological
and physical well being of the inmates.” Spain v. Procunier,
600 F.2d 189, 199 (9th Cir. 1979). In Spain, we held that
inmates classified as dangerous due to violent acts in prison
and confined to a disciplinary unit were entitled to regular
outdoor exercise. Subsequent cases in our circuit clearly
establish that the denial of outside exercise for extended peri-
460 NORWOOD v. VANCE
ods “is a sufficiently serious deprivation and thus meets the
requisite harm necessary to satisfy Wilson’s objective test.”
LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). In
LeMaire we noted that “this circuit has determined that the
long-term denial of outside exercise is unconstitutional” but
found no violation where a prisoner had both “abused [his
outdoor exercise privileges] and represent[ed] a grave security
risk when outside his cell.” Id. at 1458. Shortly after LeMaire,
in Allen v. Sakai, 40 F.3d 1001 (9th Cir. 1994), we held that
prison officials were not entitled to summary judgment on
grounds of qualified immunity where the plaintiff prisoner
was provided only 45 minutes of exercise per week during a
six-week period. We stated that in light of our prior cases, “it
should have been apparent to defendants that they were
required to provide regular outdoor exercise to [the plaintiff]
unless ‘inclement weather, unusual circumstances, or disci-
plinary needs made that impossible.’ ” Id. at 1004 (citing
Spain, 600 F.2d at 199). And, while we noted in May v. Bald-
win, 109 F.3d 557 (9th Cir. 1997), that “a temporary denial
of exercise with no medical effects is not a substantial depri-
vation,” id. at 565, May involved the denial of exercise for
only 21 days as opposed to the four deprivations of two to
four-and-one-half months in this case, totaling more than a
year out of a period of less than two years.

We have held that in cases of genuine emergency, the tem-
porary deprivation of outdoor exercise may not violate the
Eighth Amendment. In Hayward v. Procunier, 629 F.2d 599
(9th Cir. 1980), we upheld a district court’s grant of summary
judgment to prison officials but specifically noted that the
lockdown was “temporary and plaintiffs . . . were allowed
approximately the minimum exercise mandated in Spain
within a month after the imposition of the lockdown.” Id. at
603. We premised our holding on the fact that the district
court had “carefully reviewed the restrictions of the lockdown
in light of the emergency at the prison and determined that
they did not cross the eighth amendment line.” Id. Similarly,
in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), after not-
 NORWOOD v. VANCE 461
ing that “when a genuine emergency exists, prison officials
may be more restrictive than they otherwise may be, and cer-
tain services may be suspended temporarily,” id. at 1259
(emphasis added), we remanded to the district court to con-
sider “the length of time each restriction was in effect, and
whether the restriction and its duration bore a relationship to
legitimate attempts to ease the emergency.” Id.

In this case, the magistrate judge denied summary judg-
ment for defendants on the grounds that there were genuine
issues of fact regarding whether an emergency necessitated
the months-long complete deprivations of outdoor exercise in
this case. The magistrate judge also found a genuine issue of
fact existed as to whether during these periods other arrange-
ments for outdoor exercise were feasible—for example, in
small groups on the smaller concrete yards. Finally, the mag-
istrate judge found disputed facts regarding defendants’ repre-
sentation that an extended lockdown depriving all inmates of
physical exercise was called for where violence was precipi-
tated by identifiable groups. In short, the magistrate judge
found that these factual issues—material to both the deliberate
indifference and qualified immunity inquiries—were dis-
puted. The precise circumstances surrounding the continua-
tion of the four lockdowns without any arrangements for
outdoor exercise were deemed issues of fact for trial.

The case proceeded to trial before a jury, and the jury heard
testimony from defendants describing the circumstances sur-
rounding the decisions to continue the total lockdowns, the
feasibility of providing outdoor exercise in smaller groups on
the mini-yards, and the officers’ opinions as to the harmful-
ness of exercise deprivation. After hearing all the evidence,
the jury found that the defendants had been deliberately indif-
ferent in failing to provide Norwood access to outdoor exer-
cise during each of the four lockdown periods. Furthermore,
the jury determined that Norwood was entitled to punitive
damages. To do so, the jury had to find that the defendants
were not merely deliberately indifferent to the risk to Nor-
462 NORWOOD v. VANCE
wood’s health posed by the deprivation of outdoor exercise,
but that defendants’ conduct was “malicious, or in reckless
disregard of plaintiff’s rights.”

In determining whether the facts established entitle defen-
dants to qualified immunity, “the party that prevailed at trial
is entitled to have the evidence construed in a light most
favorable to it, and the question is whether the evidence was
so one-sided that one party would have to prevail as a matter
of law.” Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir.
1997) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 880
F.2d 176, 181 (9th Cir. 1989)); see also Jennings v. Jones,
499 F.3d 2, 7 (1st Cir. 2007) (holding that where defendants
press qualified immunity after a general jury verdict, the court
is required to view facts relevant to qualified immunity deter-
mination “in the light most favorable to the verdict”). Here,
the jury found defendants acted not merely with deliberate
indifference to Norwood’s right to outdoor exercise, but with
reckless disregard for it. The evidence viewed in light of that
finding does not support a defense of qualified immunity,
which requires that defendants reasonably believed their con-
duct to be lawful.

The government relies on a number of factual claims that
were disputed at trial, and which the verdict indicates the jury
rejected. For example, the government asserts that after the
lockdowns, the officials gradually eased restrictions “based on
what they learned.” In fact, the jury heard testimony from
prison officials that they “never even received anonymous
information that a group, or any specific . . . inmate was
involved in these plots to assault staff other than the perpetra-
tors” who were identified on the day of the first two attacks.
The jury also heard evidence that contradicted prison offi-
cials’ statements that they did not know if other inmates,
including inmates of other races, were responsible for the first
attack.7 Finally, with regard to the attack precipitating the
7
With regard to the first attack on staff by Hispanic inmates, Norwood
tendered evidence that staff “believed it was likely that the Southern His-
panics had put a hit out on staff” and that, generally speaking, Southern
Hispanic and black inmates were unlikely to form alliances.
 NORWOOD v. VANCE 463
fourth lockdown, Norwood tendered evidence that prison offi-
cials knew shortly after—and perhaps before—the attack that
the lone perpetrator, a Crip gang member, had specifically tar-
geted the staff member who was attacked and was already on
lockdown status at the time of the attack because prison staff
had information that Crip inmates were going to assault some-
one in the facility.

Similarly, the government notes that Norwood, who was
not affiliated with any prison gangs, was locked down after
the attacks instigated by known gang members because “gang
members often pressured unaffiliated inmates of the same eth-
nicity to assist them.” However, Norwood tendered evidence
—in the form of numerous memoranda from prison officials
to staff and inmates—that the usual course of action after a
violent incident was to lock down those inmates closely iden-
tified with the group to which the attacker belonged, for
example, Crip inmates in the case of an incident involving
Crips. Furthermore, Defendant Pliler conceded that pressuring
and violence among races and gangs occur during normal pro-
gramming and that “[t]hat’s the nature of the prisoner at the
prison.”

The majority claims that the fact that defendants imposed
general lockdowns after attacks on staff but only group-
specific restrictions after attacks on inmates “does not show
malicious intent or deliberate indifference.” The majority also
states that “plaintiff offered no evidence that the lockdowns
were meant to be punitive or were otherwise implemented in
bad faith.” However, the jury thought otherwise, rejecting the
defendants’ testimony that the exercise deprivations were
motivated primarily by the officials’ concerns for safety and
security.

Finally, the majority suggests that defendants reasonably
decided to continue the lockdowns given the occurrence of
violent incidents during and after lockdown periods. How-
ever, defendants conceded on cross-examination that “those
464 NORWOOD v. VANCE
types of incidents occur even when there is no lockdown”
with the same frequency, and that “the violence is pretty
steady.” Thus, the jury reasonably rejected defendants’ argu-
ment that they believed the unusual levels of violence justi-
fied the long-term deprivations in this case. Indeed,
defendants’ argument that the circumstances here were “un-
usual” and excused the exercise deprivation is belied by the
length of the lockdowns, which persisted for periods totaling
over one year out of a twenty-two month period.

In sum, the evidence as to the necessity of the long-term
exercise deprivations at issue in this case, viewed in light of
the jury verdict for Norwood, does not provide a sufficient
basis for determining, as a matter of law, that defendants were
entitled to qualified immunity. The alleged error of the trial
judge in failing sua sponte to grant qualified immunity cer-
tainly does not rise to the level of plain error. The district
court did not commit error—much less a plain error—and it
would be hard to imagine a trial court decision less likely to
“seriously affect the fairness, integrity or public reputation of
judicial proceedings” than a decision not to give a jury
instruction that the trial judge determined would be confusing
to the jury. Thus, if I were to reach the merits of the qualified
immunity defense, I would affirm the judgment of the district
court.

IV

The district court correctly applied the law and instructed
the jury according to controlling precedent. The jury, after
hearing a full evidentiary presentation, rejected the defen-
dants’ justification. The government failed to preserve the
defense of qualified immunity for appeal. Indeed, the govern-
ment did not even mention the affirmative defense after the
jury was seated, much less make the appropriate motion to
present the question to the district court for its consideration.
The district court did not commit error, much less plain error,
in not sua sponte granting judgment as a matter of law after
 NORWOOD v. VANCE 465
trial based on an abandoned affirmative defense. There is no
justification for overturning the jury’s verdict.

I respectfully dissent.